D.E. (C.F.) CALCUTTA TELEPHONE vs MANIKANA GUPTA BHAYA

-THIS is an appeal against two orders of the Calcutta District Forum dated 8.12.1993 and 26.1.1994 in a complaint case filed before the said Forum by the OP/Respondent Mani Kana Gupta Bhaya. The appellant is the Calcutta Telephones. The complainant alleged that her telephone was out of order since March, 1993 and that she received bills for the cycles 3,5,7, 9 of 1993 with call charges when actually telephone was not working. A show cause notice was duly served on the OP but before the O.P. could appear and show any cause an ex-parte order was passed on 8.12.1993 to the following effect:-8.12.93; complainant has alleged that her telephone is lying out of order since March ''93 and all her complaints have been futile. She has disclosed that she received the bills for cycles 3,5, & 9 of 1993 with call charges when the telephone was not working. The O.P. has prayed for time to investigate the case. The O.P. is directed either to repair or restore or to reconnect Telephone No. 42-2741 within seven days and thereafter file W.S. including the payments to be made by the complainant. Next date is 14.1.1994. Sd/-S.S. Gupta Sd/-S.K. Dass Member President

THE second order was passed on 28.1.1994 which is as follows: "28.1.94. Complainant has stated that her telephone has not been restored though she communicated the previous order promptly. THE O.P. submits that there is fault in the cable. But this cannot be accepted because the telephone is lying dead since March ''93. THE plea of the O.P. is taken with a grain of salt and it is a routine plea. THE O.P. is again directed to repair and restore complainant''s Telephone No. 42-2741 within seven days positively without asking for any payment for the unpaid impugned bills failing which penal action will be taken against the persons responsible. THE complainant is given liberty to put up the record after seven days in the event of non-compliance of this order. Next date is 2.3.94 for W.S. hearing and further order. Sd/- S.S. Gupta Sd/- S.K. Dass Member President,

The Learned Advocate on behalf of the appellant attacks both the above order on the ground that they were made in violation of the provisions of Sections 13 & 14 of the Consumer Protection Act, 1986, that no ex-parte order was permissible before the O.P. in a complaint petition appeared and showed cause and that in any case no interlocutory order could be passed in a complaint proceeding under the Consumer Protection Act (hereinafter referred to as the Act).

Evidently the appellant is perturbed over the impugned orders and wants to have them set aside but the mode of redress sought by it is not less confusing. The application is under Section 15 of the Act which provides for appeal, Section 17(a)(i), which relates to pecuniry jurisdiction of the State Commission and 17(2) (there is no such section). Section 17(b) of the Act deals with the revisional jurisdiction of the State Commission but this particular clause has not been mentioned in the application filed by the appellant.

THE main argument of the appellant''s lawyer, however, is that no ex parte order can be passed by the District Forum before the O.P. shows cause against the reliefs prayed for by the complainant. His second arguments is that an interlocutory order apart from the final order is not permitted under the provisions of the Act. Section 14 of the Act details the actions which a District Forum is empowered to take after being satisfied that the allegations regarding any defect in the goods or any deficiency in services are proved. But the Forum can take such actions only after the proceeding conducted under Section 13 of the Act is complete. The proceeding and no legal niceties is no doubt a syummary proceeding are expected to be considered, but the essential procedure of hearing the parties and considering the evidences produced by them must be followed. The order contemplated in Section 14 is a final order and no such order can be passed except after following the procedure under Section 13 of the Act.

IN the context of the above analysed legal position it is argued that no interlocutory exparte order can be passed by a Forum and that such an order is not executable as a final order. Section 24 of the Act provides that every order of a District Forum, a State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of the Act be final. Section 25 of the Act provides that every order made by the District Forum, State Commission or the National Commission shall be enforceable as if it were a decree or order made by a Court. Section 27 of the Act makes provision for penalising a person who omits to comply with any order made by the District Forum. State Commission or the National Commission. The question that arises is if an interlocutory order is covered by the provisions of Sections 24, 25 and 27 of the Act,.

THE scope of Section 14 of the Act and the jurisdiction of the District Forum to grant an interim relief came to be considered by the Supreme Court in Morgan Stanley Mutual Fund v. Kartic Das reported in II (1994) CPJ 7 (SC) (C.P.)=(1994) 2 C.T.J. 385 (Supreme Court). In this case an ex-parte order of injunction was passed by the Calcutta District Forum against the Opposite Party in the said case on the very first day of filing the complaint. While discussing the scope of Section 14 of the Act the Supreme Court in paragraph 24 of the judgment observed as follows:- "A careful reading of the above discloses that there is no power under the Act to grant any interim relief or even an adinterim relief-only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Section 14, it passes our comprehension as to how an interim injunction could even be granted disregarding even the balance of convenience."

THE Supreme Court''s opinion is, therefore, that having regard to the provisions of Section 14 of the Act no interim relief could be granted under the Act. Obviously Order 39 of the Civil Procedure Code has not been made applicable to the proceeding under the Act. Such a view was expressed by the Karnataka State Commission in Akhila Karnataka Madivala Machideva Mahajan Sangha v. Commissioner, Bangalore City Corporation & Another reported in II (1991) CPJ 543. THE Gujarat State Commission also expressed similar view in a case reported in I (1994) CPJ 334. In the New India Assurance Co. Ltd. v. Dr. R. Venkateswar Rao reported in I (1993) CPJ 61 (NC)=1993 (1) C.P.R. 105, the National Commission held that under the Consumer Protection Act the Redressal Forums do not have any power similar to those possessed by the Civil Court for passing orders giving interim directions. The Calcutta High Court also in a petition under Article 227 of the Constitution held in a case Re State Transport Authority & Another reported in 1991 (II) CHN 131 that neither a District Forum nor the State Commission has been vested with any power under the Consumer Protection Act, 1986 to grant and/or pass any interim order nor any of those Tribunals is a Civil Court or has all the necessary trappings of a Civil Court.

There are other decisions also of the National Commission and the State Commissions holding against the competence of the District Forum for State Commission to issue interim orderd against any person under the Consumer Protection Act but I do not think it necessary to cite further decisions in this respect.

FROMALL the decisions referred to above and also from the provisions of the Act as embodied in Sections 13 & 14 it is clear that the different Consumer Disputes Redressal Forums are expected to pass a final order as soon is possible after the parties appear and put forth their cases before the Forum. It is true that in some cases interim orders might be necessary but in view of the uniform, opinion against the passing of such orders we are not holding that such an order should be passed by any Forum. The Act provides that a proceeding before any Forum should be disposed of expeditiously and within a maximum period of three months. But in fact the proceeding lingers for a pretty long time. One of the causes and it is fore most cause is that there is no full time Consumer Disputes Redressal Forum in the State. This problem can be solved only by making the Forum (at least in Calcutta where the maximum number of cases both original and appellate, are filed a whole-time one. Simultaneously urgent cases should be attended more urgently so that interim order without hearing the parties may not be necessary.

THOUGH an interim order by way of injunction is not available before a Forum, we, however, feel that a stay order or an order for maintenance of status quo in appropriate cases stand on a different footing, as such an order does not purport to make an injunctive order against a person before the dispute is actually heard. It only tends to desist the parties from changing the facts constituting the dispute when the Forum is in seisin of the matter. Considering the legal provisions as discussed above we are of the view that the two impugned orders which have been challenged before us cannot be sustained and they are liable to be set aside. In the result this appeal succeeds. The appeal is allowed on contest. There will, however, be no order for costs. We order that the impugned orders dated 8.12.93 and 24.1.94 be set aside.

THE Calcutta District Forum is directed to hear the complaint and dispose of the same according to law as expeditiously as possible. Appeal allowed.